Commercial Court update – impact of COVID-19 on volume of business, remote & hybrid hearings, & more

The latest Commercial Court User Group meeting was held remotely via Microsoft Teams on 15 June 2020. The minutes of the User Group meeting have just been published. These show how the Commercial Court has adapted during the COVID-19 pandemic.

Here are the main points:

Impact of COVID-19 on volume of Commercial Court business

  • The transition from physical (in-person) to remote (video) hearings has been smooth, with almost all of the Court’s work being conducted notwithstanding COVID-19. There is as a result almost no backlog of work
  • There appears to have been no reduction in court business: there has been a slight upturn in actions commenced (269 in January to March 2019 and 288 this year); the statistics for hearings overall (this appears to exclude trials) are comparable to last year and the year before
  • There have been fewer trials in this period:
    • This appears to be due to settlement rather than adjournment
    • The normal settlement rate is 60 to 65%; in the year to mid-June 2020 it is closer to 75%
    • There have been three times the number of Tomlin orders between January and the end of May 2020 than over the comparable period last year
  • The increase in the rate of settlements began in January 2020 and does not therefore appear to have been triggered by ‘lockdown’ in the United Kingdom; it may be linked to COVID-19-related uncertainty globally, reflecting the international nature of the Court’s business

Remote hearings – present and future

  • Parties may request a socially-distanced physical hearing but there is no guarantee that they will get one. Some judges are unable to return to court due to COVID-19. Conversely, parties will not be expected to attend court if they do not want to
  • Hybrid (part physical, part remote) hearings have taken place with the support of external providers, and a protocol for hybrid hearings is being developed – covering issues such as staggered access times, access routes, witness bundles, managing oaths and affirmations, and the need for test runs
  • It would not generally be fair for one party to be in person and the other to appear remotely
  • The court is hearing witness actions remotely. The judges are alive to potential difficulties with longer trials, particularly where there is critical witness evidence or where there is complex expert evidence (eg where large complex documents have to be explained by experts)
  • Longer trials and hearings with key witness evidence are likely to be the first to return to physical hearings
  • Interim hearings are more likely to be carried out remotely for some time
  • Consideration is being given to whether to keep remote or even hybrid hearings as a default position or at least an often-used option for some types of hearing

Practical points arising from the conduct of remote hearings to date

  • There have been concerns that remote hearings are too informal
  • There seems to have been a loss of some of the non-verbal communication and information that is picked up in a court room
  • The style of advocacy is different as the judge and advocate seem to be in a ‘bubble’
  • Court etiquette should be observed:
    • It is permissible to use mobiles phones on silent in both physical and remote hearings
    • Most counsel are taking instructions via WhatsApp which on occasion can be distracting for those taking part in the hearing
    • Parties who do not have ‘speaking parts’ seem to be interacting more freely amongst themselves, which can be distracting for others
    • Advocates should not be conducting conversations with their teams while on mute
  • There have been one or two incidents where despite warnings participants have photographed proceedings
  • It appears that directions for bundles are being discussed and agreed between parties, causing costs to be raised. This should not be necessary in light of the available guidance. Court users should refer to:

Platforms for remote hearings – Skype for Business/CVP but no ban on Zoom

  • The only platform currently approved by the Ministry of Justice for use on judicial computers is Skype for Business
  • Cloud Video Platform (CVP) is being rolled out. Court users should presume that the default proceeding is that hearings will be conducted using Skype for Business until CVP is available
  • Parties can agree another platform if suitable arrangements can be made (eg for the judge to have access to a separate device running that platform)
  • If parties wish to use another platform, in depth preparations are required, and they should make the Listings office aware as soon as possible: there are always two judges on paper application duty who are able to deal with platform issues

Other aspects of Commercial Court business

Alison Padfield QC